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 THE MEANDERING COURSE
OF DEATH PENALTY
SENTENCING IN INDIA:
A CRITICAL ANALYSIS

Abhishek K. Singh*

Abstract:

The Constitutionalbench of the Supreme Court of India in Bachan Singh v.

State of Punjab has laid down elaboratecriteria that needs to be applied to
decide whether an accused deserves death penalty or not. Analyzing the
decision of the Supreme Court from 1973- 2013, the author argues that
subsequent Courts have not only failed to apply the criteria laid down but
have also grossly misunderstood the decision of the Constitutional bench,
thereby sending several accused to the gallows for whom the appropriate
punishment may have been imprisonment for life. This paper traces the
path the meandering course of death penalty sentencing in India has taken
and suggests corrective course.

Keywords: Death Penalty, Rarest of Rare, Criminology, Deterrence,

Retributive.

*B.A.LLB.,(Hons.), NALSAR University of Law, Hyderabad.The authoris indebted to Prof.D.

Balakrishna,Professorof Law, NALSAR University of Law, Hyderabadfor his continued
guidance and critical inputs into the paper.
 Nirma University Law Journal: Volume-5, Issue-2, January-2016

INTRODUCTION

'Guilt once established,the punitive dilemma begins'

-Late Justice V. Krishnalyer'

The issue of awarding death penalty for certain crimes has always been a
contentious one, not just in India but around the world. The world in this
regard has been divided into two factions, the abolitionists, who argue for the
removal of death penalty and the retentionists, who argue for its retention in
2
the Statute book.

The argument favoring death penalty is often founded on the deterrent

theory of punishment.3 This theory assumes that the motive behind
awarding punishment is to deter other members of the community from
committing the same crime.4 The result is the establishment of a stable social
order in the society. Since people fear death the most, death penalty serves as
the most effective deterrence among people. This argument was given
further credence by the research of a criminologist named Issac Ehrlich, who
established that for every death penalty seven lives are saved because of the
deterrence created in the society.' However employment of Deterrence
theory as a tool for justifying continuance of death penalty has been severely
criticized by several criminologists. They argue that there is lack of any

' Late Justice V. Krishna Iyer in, Ediga Anamma v. State of Andhra Pradesh, A.I.R. 1974 S.C.
799-
2 According to the information available on the website of Amnesty International as of 2012, 140

countries have abolished death penalty while only 58 countries have still retained it. For more
See, http://www.amnesty.org/en/death-penalty/abolitionist-and-retentionist-countries, (last
updated Dec. 20, 2014).
' Janet Chan and Deborah Oxley, The deterrent effect of capital punishment: A review of the
research evidence, 84 CRIME. & JUST. BULL. (October 2004), http://info.lawaccess.nsw.
gov.au /lawlink/bocsar /11 bocsar.nsf /vwFiles /CJB84.pdf/ $file /CJB84.pdf.
41d.
Isaac Ehrlich, The DeterrentEffect of CapitalPunishment: A Question of Life and Death, 65
AM. ECON. REV. 397-417.
6 In 2009 research conducted by two criminologists to gage the opinion of other criminologists

on the issues of abolition of death sentence, around 67% of the criminologists believed that
death sentence does not create any deterrence in the society. Michael L. Radelet & Traci L.
Lacock, Do Executions Lower Homicide Rates?: The Views OfLeading Criminologists,99(2) J.
CRIM. L. & CRIMINOLOGY 489- 5o8.
THE MEANDERING COURSE OF DEATH PENALTY SENTENCING IN INDIA: ... 21

credible data in support of this claim. In fact in 1989, a resolution was

adopted by the American Society of Criminology which had demanded the
abolition of death penalty on the grounds that there does not exist any
evidence which could give credence to the fact that death penalty causes
deterrence among other members of the community and prevent them from
committing any sort of crime.

Another justification for the continuance of death penalty is the retribution

theory of punishment. This theory is founded on the principle of lex talionis8
and argues that a just punishment is one which inflicts the same amount of
pain to the offender as he caused to the victim. 9 The retentionists argue that
since death penalty is prescribed in those cases where the accused has caused
the death of another person it is very much reasonable and justified that law
takes the life of the offender to give retribution to the family of the
deceased. However, the abolitionists expose the absurdity in this hypothesis
by arguing that modern punishment is not founded on the principle of
retribution because if this was the case then no punishment can be given to
rapists, thieves and whole lot of other criminals.11 Instead they argue that
reformation and rehabilitation is the primary purpose of punishment, which
is defeated if death penalty is awarded to an offender.

The Supreme Court of India in a series of decisions has consistently upheld

the continuance of death penalty in Statute book. According to the available
data, the Supreme Court has awarded 1,455 death penalty from 2001 - 2011

but during the same period it has commuted 4,321 death penalty awarded by
' The Resolution is Available on http://www.ase4l.com/policies/policyPositions.html, (last
updated Dec. 20, 2014).
' The Black's Law Dictionary defines lex talionis as, "the law of retaliation, under which
punishment should be in kind- an eye for an eye, a tooth for a tooth and so on," BRYAN A.
GARNER (ed.), BLACK'S LAW DICTIoNARY 924 (7th ed. 1999).
Hugo Adam Bedau, Retributionand the Theory of Punishment,75 (2) J. PHIL. 6oi-620.
Clarie Finkelstien, Death and Retribution, CRIM. JUST. ETHICS. 12-21, https://
www.law.upenn.edu/cf/faculty/efinkels/workingpapers/death%2oand%2oretribution.pdf (last
updated Dec. 20, 2014).
1 Id.
1 Supra note lo.
 Nirma University Law Journal: Volume-5, Issue-2, January-2016

the lower Courts.13 This clearly indicates a much cautioned approach taken
by the Supreme Court in awarding death penalty. The factors that a Court
needs to consider while awarding death penalty was laid down by a
Constitutional bench of the Supreme Court in Bachan Singh v. State of
14
Punjab. However, the researcher shall demonstrate through-out this paper
as to how the continuous decisions of the supreme court have not followed
this decision in letter and spirit thereby committing grave miscarriage of
justice.

The main objective of this paper is to study and elicit the sentencing
jurisprudence in India relating to death penalty. It is critical to highlight that
the paper does not express any opinion on whether we should continue with
death penalty or not? It rather concerns with the line of reasoning that a
Court should give while sentencing a person to death. However, to
completely ignore this debate would be absolutely foolhardy hence various
arguments in favour and against death penalty have been considered from
the perspective of criminology.

The decision of the Supreme Court from 1973- 2013 was studied. However,
these decisions were filtered on the basis that only those cases which have
either added/clarified the law relating to death penalty were studied in
detail.

For the sake of convenience and brevity this paper has been divided into six
sections. The first section introduces the paper while the second section
discusses those judgments which have been delivered prior to the Bachan
Singh case. The third section elaborates upon the Rarest of the Rare doctrine
while the next two sections demonstrates the manner in which the Rarest of

3
ASIAN CENTRE FOR HUMAN RIGHTS, The State of Death Penalty in India: Discriminatory
treatment amongst the death row convicts, Feb. 14, 2013, http://www.achrweb.org/
reports/india/IndiaDeathPenaltyReport2ol3.pdf. The data was released by NATIONAL CRIME
RECORDS BUREAU, MINISTRY OF HOME AFFAIRS.
14A.I.R.198o S.C. 898. (India). (Bachan Singh case).
THE MEANDERING COURSE OF DEATH PENALTY SENTENCING IN INDIA: ... 23

the Rare case doctrine has not been followed by the Supreme Court in its
subsequent decisions. The last section is the conclusion which summarizes
the various issues raised in the paper and also suggests the most appropriate
sentencing guidelines the Courts should follow while awarding death
penalty.

THE PRE- BACHAN SINGH ERA

Prior to the Bachan Singh case the Supreme Court had delivered a series of
judgment which had set the backdrop and the tone in which the
Constitutional Bench had rendered its historic decision. This section intends
to survey and map those leading cases and tries to highlight the legal
principles emerging from them.

In these lines of cases, Jagmohan Singh v. State of UttarPradesh5 is one of

the foremost cases because the Court for the first time authoritatively dealt
with the dilemma in awarding deaths sentence in preference over life
imprisonment. In the instant case the appellant was convicted and awarded
death sentence, by the Trial Court and subsequently confirmed by the High
Court, for the murder of one Chhotey Singh. On appeal the constitutional
validity of death sentence was challenged on several grounds. Inter alia, it
was argued on behalf of the appellant that in the absence of any guidelines
for imposing death penalty there is a wide discretion in the hands of the
judge. As a result, there may arise a situation where on similar facts two
different judges' award death sentence to one accused and life imprisonment
to another. It was argued that this unguided and unfettered discretion in the
hands of the judges violates equality clause enshrined in Article 14 of the
Constitution" as two similarly placed individuals may be treated differently.

The Constitutional bench of the Supreme Court while negating this argument

U A.I.R. 1973 S.C. 947.

Article 14 of the Constitution of India reads, 'The State shall not deny to any person equality
before the law or the equal protection of the laws within the territory of India.'
 Nirma University Law Journal: Volume-5, Issue-2, January-2016

observed that there is an absence of absolute discretion in the hands of the

judges while awarding death sentence. In its considered view, the principle
that guides the sentencing Court while awarding death sentence is that it
must, '[balance]all the aggravating and mitigating circumstances of the
crime....... Since the Court has to give due consideration to facts and
circumstances, which in each case shall differ it refused to hold that there is
violation of Article 14 while awarding death sentence. This is perhaps the
first case where the court laid down the guiding principle for award of death
penalty- i.e. to balance the aggravating and mitigating circumstances.

Another equally important case is that of Ediga Anamma v. State of Andhra

PradeshS In this case the accused, Anamma- a married lady who had a child
of around 10 years at the time of commission of crime, killed another
married lady and her 2 year old child because she suspected that the
deceased was having an extra marital affair with another widower for whom
she had deep seated affection and also an extra marital affair. The Trial
Court and the High Court had both awarded death sentence to the accused.
While deciding the appeal of the accused, the Supreme Court had observed
that while deciding the sentence of an accused the focus should not only be
on the crime committed but also on the criminal. It was reasoned by the
Court that this balancing act would ensure that the pronounced sentence
does justice to both the theories of punishment- reformation of the accused
and deterrence towards the act committed. In the Courts words, 'Modern
penology regards crime and criminal as equally material when the right
sentence has to be picked out .19

Hence, after duly considering not just the severity of the crime committed
but also the overall social and other circumstances of the criminal, the Court
gave due regard to the fact that the accused was a female,was of a young age,

Supra note 15, at 28.

A.I.R. 1974 S.C. 799-
Supra note 18, at 12.
THE MEANDERING COURSE OF DEATH PENALTY SENTENCING IN INDIA: ... 25

and was also expelled from the matrimonial home and had a young child to
look after to, and hence commuted the death sentence to life imprisonment.

It is submitted that this case is the first in line which considered not just the
crime committed but also the mitigating circumstances of the criminal while
sentencing the accused. Post this judgment, in a series of cases, namely
Balwant Singh v. State of Punjab", Ambaram v. The State of Madhya
Pradesh1 , Sarveshwar PrasadSharma v. State of Madhya Pradesh-, the
Supreme Court has held that there cannot be any straight jacket formulae
definition of 'special reasons'. Hence, the decision of whether to award death
sentence or life imprisonment was left entirely to the discretion of the judge.

23
In Rajendra Prasadv. State of Uttar Pradesh , the accused and one Ram
Bharosey were involved in a long standing family feud. The accused in heat
of passion murdered one of the family members of Ram Bharosey for which
he was sentenced to life imprisonment. However, after being released from
the jail on the occasion of Gandhi Jayanti he gruesomely murdered Ram
Bharosey and his friend Mansukh. The Trial Court awarded death sentence
which was duly confirmed by the High Court. The Supreme Court, while,
reversing the sentence was of the opinion that death sentence is justified in
only those cases where public interest, social defence and public order
warrants. Exemplifying on its position further, the Court laid down several
tests to decide whether to impose death sentence or life imprisonment.

Firstly, death sentence is warranted when due to the crime committed by the
accused, the normal life in the community is paralyzed and there is absolute
destruction of the social order.

2
A.I.R. 1976 S.C. 230.
2'A.I.R. 1976 S.C. 2196.
22
A.I.R. 1977 S.C. 2424.
23
A.I.R. 1979 S.C. 916.
 Nirma University Law Journal: Volume-5, Issue-2, January-2016

Secondly, if the accused shows no remorse to the committed crime and is

beyond repair within the confines of the prison then death may be awarded.
The Court in this case interestingly observed that while sentencing the Court
should not give any weightage to the brutality of the crime committed but
should consider the brutality for the evidence as to whether the accused can
be reformed or not.

Thirdly, the motivation of the accused for committing the crime must also be
given due weight age and if the accused committed a cold blood murder with
planning then such facts must be considered against him. In the opinion of
the Court, the motivation of the accused was not the sole criterion but a
relevant one in determining death penalty.

Fourthly, the Court quoted with approval several of its previous decisions
like Sriranganv. State of Tamil Nadu, 4 Nanu Ram v. State of Assam 2' and
State of Uttar Pradesh v. Lalla Singh & Others.6 to hold that death sentence
may not be preferred if the accused is too young or is suffering from any kind
of economic hardship or mental imbalance and even if there has been
sufficient time gap between the date of the commission of the crime and
disposal of appeal by the Supreme Court.

RAREST OF THE RARE DOCTRINE

The previous section illustrates that in the absence of any legislative

guideline on sentencing, the decision of awarding death penalty had become
a function of judicial discretion. Sporadic judgments did try to curtail this
discretion by enlisting specific instances in which death penalty may be
avoided; still an authoritative pronouncement by the Supreme Court was
lacking. This lacuna was soon realized and filled by a constitutional bench of
the Supreme Court in Bachan Singh case 2, which formulated the rarest of

24A.I.R.1978 S.C. 274.

2
'A.I.R. 1975 S.C. 762.
26
A.I.R. 1978 S.C. 368.
27A.I.R.198o S.C. 898.
THE MEANDERING COURSE OF DEATH PENALTY SENTENCING IN INDIA: ... 27

the rare doctrine. The doctrine was further explained in another landmark
case of Machhi Singh v. State of Punjab". The two cases serve an important
pointer in guiding judicial discretion while sentencing an accused for death
sentence or otherwise and hold water till today.

In Bachan Singh case, the petitioner Bachan Singh was sentenced to death,
by the Trial Court and confirmed by the High Court, for the murder of three
individuals under Section 30229 of the Indian Penal Code, 186o. According to
Section 354(3) of the Criminal Procedure Code, 1973 when death sentence is
awarded to an accused in preference to life imprisonment then the Court
must provide 'special reasons' for awarding death penalty." Among other
defenses on appeal to the Supreme Court, the petitioner contended that no
special reasons existed for which death sentence should be granted to him.
To drive home this point the petitioner relied on the host of judicial decisions
which have been discussed in great detail in the preceding section.

The Court observed that death penalty must be awarded only in the rarestof
the rare case. It is critical to highlight that the Constitutional Court in the
Bachan Singh case substantially agreed with most of the findings of the
Court in Jagmohan Singh case. However, it differed only on two accounts.
Firstly, in the JagmohanSingh case the Court held that death sentence may
be awarded if the aggravating and mitigating circumstances of the case are
duly considered. However, the Court in the Bachan Singh case was of the
opinion that this is not needed in light of the new Criminal Procedure Code
and introduction of Section 354(3) wherein death penalty may be given by
detailing 'special reasons'. The Court took the liberty to define 'special
reasons' as 'exceptional reasons'.

28
A.I.R. 1983 S.C. 957 (Machhi Singh case).
21 § 302 of the Indian Penal Code, 186o reads, 'Whosoever commits murder shall be punished
with death, or imprisonment for life and shall also be liable to fine.'
3 § 354(3) of the Code of Criminal Procedure, 1973 reads, 'When the conviction is for an offence
punishable with dealt or, in the alternative, with imprisonment for life or imprisonment for a
term of years, the judgment shall state the reasons for the sentence awarded, and, in the case of
sentence of death, the special reasons for such sentence.'
 Nirma University Law Journal: Volume-5, Issue-2, January-2016

Secondly, while in the Jagmohan Singh case the Court had held that only
circumstances in relation to the crime must be considered, the Bachan Singh
case partially modified this by holding that Court must not only, 'confine its
considerationprincipally or merely to the circumstances connected with
particularcrime, but also give due considerationto the circumstancesof the
31
criminal.' Hence, while until Bachan Singh case the focus was only on the
crime post this decision the focus shifted to both the crime as well as the
circumstances of the criminal. This marks a critical shift in the Judicial
attitude.

In Machhi Singh case the facts which gave rise to the dispute was that one
Machhi Singh along with his eleven other companions had murdered
seventeen persons belonging to the family of one Amar Singh. There was
long standing animosity and feud between the two families and Macchi
Singh sought to revenge this by killing family members of Amar Singh. As a
result of being awarded death sentence by the Lower Courts, the accused
preferred an appeal to the Supreme Court.

The Supreme Court while holding that Bachan Singh case was the law on the
subject listed the following guidelines emerging from that case3 2:

Firstly, death penalty should be granted only in rarest of the rare case.

Secondly, while sentencing the accused the circumstances of the crime and
that of the accused both are relevant and neither of them could be left out
from consideration.

Thirdly, the fundamental guiding principle is that death sentence is

exception to the general principle of awarding life imprisonment and hence
it should be used only in sporadic cases where the facts and circumstances
warrants nothing but the death of the accused and any other punishment
would be wholly inadequate.

Supra note 27, at 164.

3 Supra note 28, at 37-
THE MEANDERING COURSE OF DEATH PENALTY SENTENCING IN INDIA: ... 29

Fourthly, before awarding death sentence the sentencing Court must draw a
33
'balance sheet of all the aggravatingand mitigating circumstances.' After
giving weightage to the mitigating circumstances and if the balance is still
tilted in favor of the aggravating circumstances only then death penalty
should be awarded.

While Machhi Singh case is considered to extrapolate the decision of the

Supreme Court in Bachan Singh, it is submitted that the former case did not
read the later decision correctly. While culling out the proposition laid down
by the Supreme Court in the Bachhan Singh case, as detailed earlier, it
required the sentencing Court to adopt the balance sheet approach.This is
contrary to the express words of the Court in the Bachan Singh case and is in
fact one of the two points where the Court disagreed with the Jagmohan
Singh case. Moreover, the balance sheet approach is itself faulty because it
tries to compare two dissimilar and different things- i.e. the crime with the
criminal. It is indeed sad that until today this balance sheet approach
though contrary to the Constitutional bench decision of the Supreme Court is
being blindly carried forward by different Courts in the Country.

Moreover, besides enumerating the guidelines that needs to be followed in

the case of awarding death sentence, the Court in Macchi Singh case listed
two questions which must always be answered while deciding on the
sentence.34 Firstly, is the offence committed so exceptional that there is no
scope for awarding any other sentence? Secondly, even when weightage is
accorded to the mitigating circumstances does the circumstances still
warrants death penalty?

It is critical to highlight that the Supreme Court in Macchi Singh case did
attempt to define rarest of the rare by holding that they are those cases which

Id. (Balance Sheet Approach).

Supra note 28, at 38.
3
Id. 32.
 Nirma University Law Journal: Volume-5, Issue-2, January-2016

shocks the 'collective conscience of the community."'3 The Court did list five
pointers which may be considered by the Court:

Firstly, the manner in which the crime was committed. Those cases where
the murder committed by the accused was 'brutal, grotesque, diabolical,
6
revolting, or dastardly manner"' would fall under this category. Secondly,
the motive behind the criminal act may be looked at. Killing people for
money or cold blood murder would usually fall under this category. Thirdly,
the nature of the crime which has been committed may be a relevant
consideration. Killing of members of the Schedule Caste and Schedule Tribe
Community with the intention to terrorize other members of the same
community or death in pursuance of dowry would fall under this category.
Fourthly, the degree of crime must be considered. Illustration could be those
cases where members of the same family are killed. Finally, the status of the
victim is also relevant and should be duly considered. Hence this category
would comprise those cases where the victim is a child or a famous political
leader who has been killed for nefarious political reasons.

These pointers even though may be of extreme help to the sentencing Court
it is submitted, is against the spirit of the Court's decision in Bachan Singh
case. In that case the Court 3 was of the firm opinion that it would not be
possible to lay down with precision all the mitigation and aggravating
circumstances. It had opined that any attempt by it to lay down
circumstances would run the risk of frustrating the very purpose for which
discretion was granted." The rationale behind grant of discretion was that
since facts and circumstances of each case are different, the sentencing judge

36
Id. T 33.
Arnold v. Georgia, (1976) 224 SE 2d 386; Dennis v. United States, Trop v. Dulles, (1958) 356
US 86. (The Supreme Court besides discussing Commentaries and Law Reports of various
jurisdiction, discussed in great detail in these judgments of the Unites States Supreme Court).
38To arrive at this conclusion the Court quoted with approval the decision of the Supreme Court
in Gurbaksh Singh Sibbia v. State of Punjab, 198o S.C.R. (3) 383.
THE MEANDERING COURSE OF DEATH PENALTY SENTENCING IN INDIA: ... 31

can duly consider each of the circumstances independently without having to

worry whether the circumstances would fit within the straight jacket
formulae. This discretion by application of judicial mind would not only
ensure that most suited punishment is awarded but also that ends of justice
are always met.39

DEVIATING FROM BACHAN SINGH- A MISGUIDED APPROACH

This section shall demonstrate with the help of decided cases of the Supreme
Court how the Bachan Singh approach of considering circumstances
relevant to the crime and criminal was systematically given away by the
Court. In deciding these cases, the Court not only gave no credence to the
judicial authority in hand but also devised their own set of guiding factors
while sentencing the accused. Even though these decisions suffer from the
vice of per incuriam ° and hence are bad in law they have sent several men
and women to the gallows even when the alternate punishment of life
imprisonment may have been available to them.

Shifting the Focus to Crime Only

As discussed earlier one of the contributions of the Bachan Singh case was
that it shifted the focus from crime to crime and criminal both. However, this
approach though pronounced by a Constitutional bench of the Supreme
Court was short lived and a two judge bench of the Supreme Court in Ravji
alais Ram Chandra v. State of Rajasthan,1 brought the focus back to the
crime only while completely neglecting the circumstances of the criminal.

3931(1 & III) LAW COMMISSION OF INDIA, 'Capital Punishment", 190

http://lawcommissionofindia.nic.in/1-50/Report35Volland3.pdf, (last updated Dec. 20, 2014).
4oJUSTICE G.P. SINGH, PRINCIPLES OF STATUTORY INTERPRETATION (2012). (In law of precedents

when a bench does not follow the ratio laid down by a larger bench of the same or higher court
then the decision of such Court is rendered per incuriam and other Courts are not bound to
follow it).
0A.I.R. 1996 S.C. 787.
 Nirma University Law Journal: Volume-5, Issue-2, January-2016

In Ravji case, the accused murdered his wife and three minor children and
attempted to murder his mother and neighbors' wife. He was convicted and
sentenced to death by the two Lower Courts. While considering the case of
the accused, the Court erroneously believed that in a criminal trial while
sentencing, 'It is the nature and gravity of the crime and not the criminal.' 2
which must be considered. Hence, without even justifying that the case falls
within rarest of the rare category the Supreme Court confirmed the death
sentence. The decision exhibits complete absence of any discussion on the
mitigating circumstances relevant to the accused and briefly inquires only
into the severity and brutality of the crime committed by the accused.

Even though the Ravji decision was per incuriam in a shocking state of
affairs the Supreme Court brazenly applied it and quoted with approval in as
many as six other cases. These six cases are Shivaji v. State of
43 44
Maharashtra , Mohan Anna Chavan v. State of Maharashtra , Bantu v.
State of U.P., Surja Ram v. State of Rajasthan6 , Dayanidhi Bisoi v. State
of Orissa4 and State of U.P. v. Satta"s. It is submitted that it is not the
contention of the researcher that these individuals do not deserve death
sentence- perhaps they did. However, without any discussion on mitigating
circumstances, there does exists a possibility that perhaps life imprisonment
would have been the more suited punishment.

The Ravji decision was delivered by the Supreme Court in 1996 and was
detected 13 years later in 2009 by another bench of same Court in Santosh
Kumar SatishbhushanBariyar v. State of Maharashtra,9 the bench besides
lamenting over the fact that a per incuriam judgment was being incorrectly

"Id. 25.
3
4 AIR 2009 SC 56.
' (2008) 11 S.C.C. 113.
41J.T. 2008 (8) S.C. 136.
461997 Crim.L.J. 51.
472003 Crim.L.J. 3697.
41(2009) 4 S.C.C. 736.
492009 (2) A.L.T. (Cri) 386.
THE MEANDERING COURSE OF DEATH PENALTY SENTENCING IN INDIA: ... 33

followed with authority by other Courts did not attempt to undo the wrong
committed and perhaps save those individuals who due to reliance on an
incorrect precedent were sentenced to be hanged by neck till death.

Shifting the Focus to CriminalsOnly

In BA. Umesh v. RegistrarGeneral,High Court of Karnataka,"the accused

committed the gruesome murder of a woman and thereafter looted her home
while in Sushil Murmu v. State of Jharkhand,1 the accused had sacrificed a
two year old boy in order to please Goddess Kali. In both the two decisions
the Supreme Court was hearing an appeal against the judgment of the
Higher Court which had confirmed the death penalty of the lower Court.

The absence of discussion on mitigation circumstances relevant to the

criminal coupled with the fact that the Court does not give any 'special
reasons'for awarding death penalty renders these two judgments bad in law.
The brief facts of the case in both the two cases demonstrate that the crime
was extremely heinous, committed with a lackadaisical motive and for petty
gains and the circumstances may even warrant death penalty. However while
discharging it duty as the sentencing Court, the Supreme Court ought to have
given a thought to the circumstances relevant to criminal. It is submitted
that a mere survey of cases relating to death penalty and vaguely mentioning
that the case indeed falls under the rarest of the rare category would not
meets the ends of justice.

MANDATORY DEATH PENALTY

A latest disquieting trend in the Supreme Court is of classifying certain

offences as those that fall within rarest of the rare category and thus
deserving nothing short of death penalty. It is submitted that this
discomforting trend by the Supreme Court not only run foul to the judgment
of the Constitutional Bench in Bachan Singh case but also of another

" (2011) 3 S.C.C. 85.

 Nirma University Law Journal: Volume-5, Issue-2, January-2016

Constitutional Bench decision of the Supreme Court in Mithu v. State of

PunjabY

In Mithu case, Section 303 of the Indian Penal Code, 186o, which prescribes
mandatory death sentence for those accused who have been previously
convicted of murder and awarded life imprisonment was challenged under
Article 14 and 21 of the Constitution.' The Union Government while
defending the impugned section before the Court, among other defence
availed by it, had argued that from a criminologist perspective the rationale
for punishment was to reform the accused. However, a life convict who has
already committed a heinous crime for which he is being punished for life
when goes ahead and commits murder then it shows that there are no
chances of him being reformed and that he poses a threat to the society.
Hence, in such cases death is the only remedy available to the society.

The Court while striking down Section 303 of the IPC as unconstitutional
observed that, 'A standardized mandatory sentence, and that too in the
form of a sentence of death, fails to take into account the facts and
circumstancesof each particularcase.' The Court not only favored but also
dwelt upon the necessity of having discretion in the hands of the sentencing
judge. The rationale stems from the fact that there may be cases and events
in which the circumstances warrant taking a lenient view in favor of the
accused and awarding life imprisonment. However, taking away judicial
discretion would result in the judge being relegated to the position of fence
sitter post the determination of the guilt of the accused and allow travesty of
justice to take place before his own eyes.

" (2004) 2 S.C.C. 338.

1 A.I.R.1983 S.C. 473 (Mithu case).
" § 303 of the Indian Penal Code, 186o reads, 'Punishment for murder by life convict- Whoever,
being under sentence of imprisonment for life commits murder, shall be punished with death.'
For the text of Article 14 see supra note 16. Article 21 of the Constitution of India reads, 'No
person shall be deprived of his life or personal liberty except according to procedure established
by law.'
A Supra note 51, at 22.
THE MEANDERING COURSE OF DEATH PENALTY SENTENCING IN INDIA: ... 35

Despite this settled position of law of not prescribing mandatory death

sentence, several recent judgments of the Supreme Court in the most brazen
disrespect to the judicial precedents in hand have mandated compulsory
death penalty in certain class of cases. In Bhagwan Dass v. State (NCT) of
Delhi," the married daughter of the accused-appellant had left her
matrimonial home and was living with her uncle in an incestuous
relationship. This act had angered the father so much that he killed her
daughter in the name of protecting the honour of his family. The Supreme
Court, while dismissing the appeal of the accused against death sentence
awarded by the Lower Court, observed that all cases of honour killings fall
within the rarest of the rare category and in such cases only death sentence
should be awarded and other reasons and considerations should be
completely overlooked. 6 What is even more bizarre is the fact that the Court
did not attempt to define what honour killing would mean and left it to the
colloquial understanding of the word.

5
In Prakash Kadam & Othrs. v. Ramprasad Vishwanath Gupta & An. , a
two judges bench of the Supreme Court while hearing bail petition failed by
the some police officers who have been accused of fake encounter, the Court
while dismissing their bail application observed that all fake encounter cases
fall within the rarest of the rare category. Hence once it is established that
the accused are guilty they should be mandatorily sentenced to death."

In Satya Narayan Tiwari @ jolly & Anr. v. State of U.P.59 , the accused and
his mother was charged under Section 304B" and 498A61 of the Indian Penal

(2011) 6 S.C.C. 396.

'!d. 8.
A.I.R. 2011 S.C. 1945.
'Id. 25.
(2010) 13 S.C.C. 689.
6o§ 304 B of the Indian Penal Code, 186o, prescribes seven year to life imprisonment for the
offence of dowry death.
" § 4898A of the Indian Penal Code, 186o, prescribes imprisonment upto seven years for the
offence of cruelty by husband or his relatives towards his wife.
 Nirma University Law Journal: Volume-5, Issue-2, January-2016

Code, 186o, for the killing his wife, as her family members were unable to
satiate the dowry demands of her in-laws. While confirming the death
penalty the Court observed that cases relating to dowry death fall under the
rarest of rare category and hence death penalty should be compulsorily be
awarded. 6

While the observation of the Court in PrakassKadam" and Satya Narayan

Tiwarr' case would have qualified as obiter dicta because while in the first
case, the Court was dealing with a bail application and in the second case
with Section 304B and 498A in which death penalty is not prescribed, the
Supreme Court in Ajitsingh HarnamsinghGujral v. State of Maharashtra 6

has expressly endorsed and confirmed these view and hence even these
obiter have now become binding law. Moreover, this case further added that
hired or contractual killing should also deserve nothing short of death
penalty.

The instance of the division bench judgment of the Supreme Court on the
fact that in certain categories carved out by them, the rarest of the rare
category test is automatically satisfied and further inquiry into the facts and
circumstances of the crime and criminal would be a futile exercise goes and
that in such cases only death sentence is the just punishment is not only
against the letter but also the spirit of the judicial pronouncements in
Bachan Singh case and Mithu case. It is needed that the decisions which
have been mentioned in this section of the paper should be urgently revisited
by a larger bench of the Supreme Court before they are followed by any other
lower Court as binding precedent.

61Supra note 59, at 7.

63Supra note 57.
6 Supra note 59.
652011 (1o) SCALE 394.
THE MEANDERING COURSE OF DEATH PENALTY SENTENCING IN INDIA: ... 37

CONCLUSION AND SUGGESTIONS

The present discussion reveals that death sentencing in India has largely
become a judge centric exercise,66 where the Courts are not shying from
digressing from established legal precedent. It is submitted that the need of
the hour is to come up with uniform sentencing guidelines which could be
followed by the Courts while sentencing the accused. In fact the Malimath
Committee on Reforms of Criminal Justice System had recommended way
back in 2003, the need for sentencing guidelines so as to ensure that
discretion in the hands of the judges remain thoroughly guided.6

A welcome step in framing of sentencing guidelines has been the decision of

68
the Supreme Court in Ramnaresh v. State of Chhattisgarh, where the
Court after surveying various judicial decisions on death penalty6" has
framed principles which a Court of law must follow while awarding death
sentence and if sentencing guideline relating to death sentence is ever rolled
out. The principles are:'

Firstly, the application of rarest of the rare case doctrine is sine quo non for
awarding death penalty.

Secondly, factors like the manner in which the crime was committed and the
motive behind the commission of crime must also be considered.

66 Sangeet & Anr. v. State of Haryana, Criminal Appeal No. 490-491 of 2011, Supreme Court of
India.
671 REPORT OF THE MALIMATH COMMITrEE ON REFORMS OF CRIMINAL JUSTICE SYSTEM, Part IV,
§14.4, 170, http://mha.nic.in/pdfs/criminal-justice-system.pdf. (last updated Dec. 20, 2014).
68 2012 CRIM. L. J. 1898.

61 Maharashtra v. Goraksha Ambaji Adsul, (2011) 7 S.C.C. 437; Dhananjoy Chatterjee @ Dhana
v. State of West Bengal, (1994) 2 S.C.C. 220; Surja Ram v. State of Rajasthan, (1996) 6 S.C.C.
271; Prajeet Kumar Singh v. State of Bihar, (2008) 4 SCC 434; State of Rajasthan v. Kashi Ram,
(2oo6) 12 SCC 254; Atbir v. Government of NCT of Delhi, (2010) 9 S.C.C. 1; Ronny @ Ronald
James Alwaris Etc. v. State of Maharashtra, (1998) 3 S.C.C. 625; Allauddin Mian and Ors. v.
State of Bihar, (1989) 3 S.C.C. 5; Bantu @ Naresh Giri v. State of M.P., (2001) 9 S.C.C. 615.
0
7 Supra note at 68, 41-44.
 Nirma University Law Journal: Volume-5, Issue-2, January-2016

Thirdly, the golden rule that death sentence is exception and to be used
sparingly when the circumstances do not warrant giving life imprisonment to
the accused must always be followed.

Fourthly, due consideration must be given to the circumstances of the crime

and that of the criminal.

Fifthly, judicial discretion to the Court in matter of death penalty must

always be given.

While no sentencing guidelines have been issued till date,' recently the
Supreme Court in Soman v. State of Kerala' has listed out certain
parameters which a Court must always keep in mind while sentencing the
accused. Even though the facts of the case did not warrant death penalty the
parameters issued by the Court can be said to be a starting point and are of
equal importance for our present discussion. The parameters listed by the
Court for consideration are:

1. The Court must always ensure that the punishment handed to an

accused is in proportionto the crime committed by him.

2. The net effect of the punishment should be that it creates effective

deterrence among others. A punishment which fails to create deterrence
is no punishment at all.

3. It is relevant to find out whether under ordinary circumstances the

accused was aware of the consequences of his act?

4. Severe punishment should be handed out when the accused was in

possession of the knowledge of his intended consequences and it did
occur.

" As on Dec. 25, 2014.

722013 (3) R.C.R. (Criminal) 503.
THE MEANDERING COURSE OF DEATH PENALTY SENTENCING IN INDIA: ... 39

5. Even if the accused did not intend those consequences which did occur,
if the consequences can be reasonable foreseen then he must be
punished according to the severity of the occurred consequences and
not those which he intended. Example, if a person is making spurious
liquor; drinking which several people died then even he the maker did
not intend those death he should be punished because they are
reasonable foreseeable.

In light of this brief sentencing guideline issued by the Supreme Court and
juxtaposing these with the judicial precedents on the issue of awarding death
penalty, in the opinion of the researcher the correct law and sentencing
guideline relating to death penalty as it stands today is:

1. Death penalty should be awarded only in rarest of the rare case.

2. It would not be possible to give a straight jacket formulae definition of

rarest of rare and it would depend upon the discretion of the judge.

3. A sentencing judge while deliberating on the question of whether to

award death penalty or not should consider not only the circumstances
with reference to the crime but also to the criminal.

4. However, it is not only unnecessary but also incorrect for the Court to
adopt the balance sheet approach.To do so would be comparing two
unequal and different things, which is wholly unwarranted and uncalled
for.

5. Instead of drawing balance sheet the judges should give special reasons
in accordance with Section 354(3) of the Code of Criminal Procedure,
1973 for preferring death penalty over life imprisonment.

6. Death should be the last preferred option and to be used sparingly in

only those cases where the accused cannot be transformed.
40 Nirma University Law Journal: Volume-5, Issue-2, January-2016

7. The Supreme Court should refrain itself from creating categories of

crime in which death should compulsorily be awarded, to do so would
not only take discretion from the hands of the judges but also against
the letter and spirit of the judgment of the Court in Bachan Singh and
Mithu case.